Pakistan: Appointment of judges

Editorial: THE FRONTIER POST

The federation’s decision that President Asif Ali Zardari would move the Supreme Court in a reference under Article 186 invoking the SC’s advisory jurisdiction on the question of seniority for the appointment of members of superior judiciary, seems a skilful move to settle once for all as to who among the Judicial Council, the Parliamentary Committee and Presidency is authorized to appoint judges at the Supreme Court and high courts on the basis of their seniority that is determined by the judiciary. The earlier the presidential reference comes to the SC the better. The controversy arose with the decision to elevate the chief justice of the IHC, Justice Iqbal Hameedur Rahman, to the Supreme Court and both the Judicial Commission and Parliamentary Committee decided to elevate Justice Mohammad Anwar Kasi as the IHC chief justice as the senior-most judge of this court. But when the summary appeared before President Zardari for routine signing, it came to be known that Justice Riaz Ahmed Khan was senior to Justice Kasi and, therefore, qualifies to succeed Justice Rahman as the IHC chief justice. The new situation brewed the controversy in the context as to whether the president should apply his mind on such appointments or sign on the dotted lines. This was in the wake of this anomalous situation that the Presidency decided to assert its decision-taking constitutional authority. The Presidency seems to have a strong case because when seen in the context of the judges seniority list, compiled by the judiciary itself, Justice Riaz Ahmed Khan and not Justice Mohammad Anwar Kasi is the senior-most judge of the IHC after its chief justice who has been elevated to the SC. What seems more uncharacteristic in the whole episode is the acquiescing role of the Parliamentary Committee which was required to bring under scrutiny the Judicial Commission’s recommendations but apparently affixed its signatures on what the Judicial Committee held in the case. This eventually gave birth to a dilemma for the Presidency within the meaning of the 18th and 19th Amendments to the Constitution and the Presidency returned the recommendations to the Judicial Commission with an observation that it should reconsider its nominations because the commission which had finalized the names was not constituted properly either. The controversy was over the composition of the 11-member Judicial Commission in which Justice Muhammad Anwar Khan Kasi sat in place of senior judge Justice Riaz Ahmed Khan who was not present in Pakistan when it met. The Nineteenth Amendment to the Constitution was an attempt to remove some deficiencies in the new mode for appointments in the superior judiciary, introduced vide the Eighteenth Amendment, in the light of the Supreme Court order dated October 21, 2010. The important question is in what way the new method for inductions in the upper judiciary is better than the old one. It was in the Al Jihad Trust case of 1996 that the Supreme Court elaborated the meaning of the word “consultation” as contained in Article 177 and 193 dealing with appointment of high court judges. The court held that “the consultation should be effective, meaningful, purposive, consensus oriented and leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the chief justice of a high court on to the fitness and suitability of a candidate for judgeship may, thus, be accepted only in the absence of very sound reasons to be recorded by the president or the executive. This makes the Presidency’s resolve to return the recommendations sound. The framers of the 1973 Constitution, the fountainhead of all state powers, intended to give the executive discretion in the appointment of judges. That is why they used the word ‘consultation’ and not ‘advice’ in Article 177 as well as Article 193 and did not provide either that the consultation would be binding. And this is hardly surprising, because the appointment of judges is an executive function and consultation with the judiciary was meant to assess the fitness of a person to become a member of the superior judiciary. However, this and all other issues would undergo a judicial review and the presidential reference appears to be move to settle all such issues once and for all. The apex court is, nevertheless, requested no solicit the opinion of as many amicus curie as possible in resolving the issue or issues.